What is Property?
The government (the Crown) owns all land and controls its use, sale, and development. Individuals do not own the land but have estates or interests in it.
- Estates provide the right to exclusive possession of the land.
- Interests do not offer exclusive possession.
One’s rights to the land depend on the type of estate or interest they have.
Estates in Land
An estate in land grants the owner the right to exclusive possession, meaning they alone control the land and can deny access to others.
Fee Simple Estate (or freehold) estate
A fee simple estate is the highest form of land ownership. The Crown grants it to the first owner through a Crown patent. The Crown can reclaim the land for public use, but must compensate the owner. If the owner dies without a will or heirs, the land reverts to the Crown.
The person with the fee simple estate (called “the owner in fee simple”) has the right to exclusive possession and the right to indefinitely dispose of the land. That person is considered to be the true owner of the land and has all the rights associated with land ownership.
Life Estate
A life estate gives someone the right to exclusively possess a property for their lifetime or someone else’s lifetime. This person, known as the “life tenant,” has an indefinite right to the property. When the life tenant dies, the property reverts to the “remainderman,” who holds the estate in fee simple.
The fee simple owner can assign a life estate to one person and the fee simple estate to another. For example, a father might leave a life estate in his home to his spouse and the fee simple estate to his child. In this case, the spouse has the right to possess the property until their death, after which the child gains possession. The life tenant must use the property reasonably, maintain it, and avoid causing damage. They can also grant possession of the property to someone else, but this right ends when the life tenant dies.
For example:
Leasehold Estate
A leasehold estate grants the right to exclusive possession of the property for a specified period of time in return for the payment of rent. This creates a landlord-tenant relationship between the parties.
Summary
There are two types of rights: the right of ownership and the right to possession.
Interests in Land
Interests in land do not confer on their owners a right to exclusive possession of the land. Instead, they confer the right to use the land without changing the landowner’s estate in land.
Easement
An easement, or right of way, allows someone to use part of another person’s land for a specific purpose without needing permission. The land providing the easement is the servient tenement, and the land benefiting from it is the dominant tenement. For an easement to exist, these two lands must be owned by different people.
Three Points on Easement
- Express Grant: An easement created by a written document from the owner of the servient tenement to the owner of the dominant tenement.
- Prescription: When an interests is acquired in another’s land after 20 years of open and uninterrupted law.
- Easement Implied by Law: When the only way to gain access to a property is by crossing over another property.
Restrictive Convenants
A restrictive covenant is a promise by an owner of land to refrain from doing something on the property.
Mineral Rights
The Crown can transfer the mineral rights to a person other than the owner of the fee simple estate. When a person acquires mineral rights in the land of another person, that interest is called a profit à prendre.
Riparian Rights
Riparian rights are the rights of an owner of land to a watercourse that runs through or is adjacent to the property.
Possessory Interests in Land
A person can acquire an interest in someone else’s land by simply using the land over an extended period of time. It is possible to acquire by possession through:
Title to Land
Title means ownership. Property can be owned by one person or multiple people. When multiple people own property together, they can hold it as joint tenants or as tenants in common.
The Partition Act
The Partition Act applies when two people co-own a property, but one wants to sell, and the other does not. If there’s no agreement on selling the whole property, an owner can request a court order to force the sale of the entire property.
This blog post does not constitute legal advice and was written solely to provide information. If you would like to consult with a lawyer about the issues raised in this post, please contact Empel Law Professional Corporation at 416-500-1937.